The FEC, FUD, and the blogpocalypse

FEC member Bradley Smith recently gave an interview to CNET that caused …

Just to put my cards out on the table at the beginning of what may well be an inflammatory post, I should note that I was happy to see McCain-Feingold passed, even with all its flaws. I support strict government regulation of corporate political contributions, and I support some amount of government regulation of private monetary campaign contributions. But regardless of what you think about campaign finance reform in general or McCain-Feingold in particular, what I'm going to report here ought to get you riled up.

Allow me to introduce Bradley Smith, the Republican arch-nemesis of campaign finance reform. Much to the chagrin of Democrats, Smith was appointed to the FEC by Clinton. (Appointing an enemy of campaign finance regulation to the FEC was kind of like appointing the former head of Ducks Unlimited to the board of PETA, but that's Clinton for you.) Most recently, Smith has become well-known in the blogosphere as the prophet of the coming blogpocalypse by predicting a near-term future in which every type of internet political activity will be carefully monitored and restricted by Big Brother. But before we get into the topic of Smith's dystopian vision, some amount of background is needed to give his remarks their proper context. Let's begin with Smith on McCain-Feingold, the campaign finance reform law that he predicts will bring about The End of the Internet As We Know It:

FEC Commissioner Bradley Smith, speaking in Washington Monday, said the campaign finance reform bill now working its way through Congress will "socialize" American politics. "There is no real excuse for it," he said. "We'll find that that our society ends up being more corrupt, rather than less corrupt."

If McCain-Feingold is enacted, Smith believes, "We'll find that there's a need at the top for lawyers and consultants. The James Carvilles and the Paul Begalas of the world will have more influence, and the political life of the great mass of Americans is impoverished."

Former President Clinton appointed Smith to the Federal Election Commission last year. He has a strong interest in campaign finance reform, even writing a book about it called "Unfree Speech: The Folly of Campaign Reform."

You can find more of Smith's rantings against "do-gooders" and "busybodies" who want to make it harder for individuals and corporations to buy political influence in the article linked above. Note that that article is from a conservative website. If you want a left-wing take on Smith, check out this link for an overview of Smith's lifelong crusade against any and all regulation of election fundraising.

The story of McCain-Feingold's afterlife in the court system is a bit complicated, but I'll see if I can boil it down. In essence, after the bill passed, Smith and the FEC were called on to write up a set of regulations for implementing McCain-Feingold. Naturally, they took that opportunity to essentially gut the bill through a combination of loopholes and too-narrow tests for compliance. The bill's two main sponsors in the house, Christopher Shays (R-CT) and Marty Meehan (D-MA) sued the FEC in federal court and won. Judge Colleen Kollar-Kotelly went through the FEC's regulations and struck out a series of clauses, including an exemption for Internet advertising. In essence, the judge essentially rewrote the FEC's guidelines on her own in an attempt to restore the effectiveness of the law. Rush Limbaugh and the rest of the right, including, presumably, FEC member Bradley Smith, were righteously angry with the judge. The case is now being appealed to the Supreme Court.

With that background in place, let's take a look at a story that has the left-wing blogosphere in a tizzy. It's an interview with Smith on the apocalyptic implications of McCain-Feingold. Hold on to your hats, because to hear Smith tell it, Judge Kollar-Kotelly's smackdown of his proposed regulations means the FEC is going to be forced to monitor your every electronic transmission, every link to a campaign website on a homepage, blog, or online publication, every email sent out, and so on:

Q: What rules will apply to the Internet that did not before? A: The commission has generally been hands-off on the Internet. We've said, "If you advertise on the Internet, that's an expenditure of money--much like if you were advertising on television or the newspaper." Do we give bloggers the press exemption?

The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law. Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign? I don't know. But I'll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign...

Then what's the real impact of the judge's decision? The judge's decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services...

What happens next? ...I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

If Congress doesn't change the law, what kind of activities will the FEC have to target? We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should Nytimes.com and Opinionjournal.com get an exemption but not online sites, just because the newspapers have a print edition as well?

So if you're using text that the campaign sends you, and you're reproducing it on your blog or forwarding it to a mailing list, you could be in trouble? Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre.

Yup, that would be really, really bizarre alright! And speaking of bizarre, here's something that should be bizarre but unfortunately isn't: a Republican member of the FEC who bitterly opposed McCain-Feingold and has devoted his career to abolishing campaign finance laws gives an interview to an online publication in which he predicts that the bill that he opposed will force the government to monitor and restrict political activity on private email lists and personal websites, and to stifle pretty much any form of political organizing that happens using electronic media. In other words, Smith claims that thanks to McCain-Feingold, we're now just shy of living in a police state.

The phrase "spreading FUD" is overused these days, but this is a textbook example. In fact, I think that when you look up FUD in the jargon file from now on, Smith's picture should be in the entry.

Update: A lot of people in the discussion thread are asking me to spell out for them how Smith's assertions constitute FUD. Before you post a "me too" along these lines, you might actually read through all of Smith's claims. You know, like the one where he concludes that the FEC's inability to exempt Internet advertising--as in, the buying of advertising space from online advertisers--from McCain-Feingold means that the FEC may have to monitor every email you send out to friends and family for political content. Folks, this is just idiotic on its face. Not only is it technically infeasible, but it obviously violates the First Amendment... which is exactly Smith's point.

So here's the story in an nutshell, for those who still don't get it. Smith is man who has staked his entire career on the abolition of any and all campaign finance laws, under the ostensible premise that they violate the First Amendment. He hates McCain-Feingold, and objected vociferously to its passage. But once the bill passed, it was his job to interpret it and enforce it. Since he found it offensive, he tried to gut it in its implementation. His attempt to gut it was overturned by a judge, who struck out the parts of his implementation that she felt violated the intent of the law as it was written. One of the parts that she struck out was an exemption that protected online advertising from regulatory oversight.

Smith then gives an interview to an online magazine in which he claims that because Internet advertising--again, the buying of advertising purchased online, y'know, like when someone buys an ad from a publication that sells ads to be displayed on the Internet--must now be regulated by McCain Feingold, it is therefore likely that political links and content sent out in personal email or posted on personal web pages must be similarly regulated.

Now, let's pause for a moment here, because this is a crucial point in the story. If you are a technical person and you read Ars Technica and you do not see a difference between an advertisement that you buy on a website and a link that you send out in email, then please, close the browser now and take up another pastime, like bee-keeping or saddlemaking. If you do know the difference then you can clearly see that Smith's claims in this interview are quite extraordinary--so extraordinary, in fact, that they are based either in Smith's deep knowledge of the dark, hidden arcana of campaign finance law and high technology, or in an ideologically driven desire to render the prospect of campaign finance so scary and dangerous that no one would dare support it.

So the whole point of Smith's interview was to get everyone up and arms against a judicial decision that he did not like, because it restored the efficacy of a law that he found morally offensive and constitutionally unsound. Smith hates campaign finance, he wants to destroy it, and so to achieve that end he gave an interview in which he makes a serious of truly extraordinary and extremely alarming claims about the likely implications of this law that he wants off the books.

And guess what, it worked! Here's Josh Marshall, proprietor of one of the largest New Democrat blogs on the 'net, in response to the interview:

If this is the law, then the law is an ass.

I'd like hear some more voices about the issues involved in this potential regulation and whether what FEC Commissioner Bradley Smith predicts is likely to come about. But if it's as he says, it really would mean the end of what this site and so many others on the right and left do.

Marshall wasn't the only former McCain-Feingold supporter to suddenly go sour on the law as a result of Smith's interview. There were plenty of other large bloggers as well that became convinced that the sky was falling, because Smith made this series of really alarmist claims in this interview. Well, I suppose the sky may indeed be falling, and Smith may be right. That's one of the two options I proposed above, i.e. a) Smith is a campaign finance law genius who understands better than anyone else how his commission will be tasked with doing openly Orwellian and technically impossible deeds of monitoring and suppression as a result of this bill, or b) Smith is an ideologically driven FUD monger who despartely wants to scare people out of support for this bill. In light of what I dug up on Smith's background, I think it's pretty clear that b) is most certainly true, a fact that makes a) look a heckuva lot less likely.

Is Smith's background alone sufficient to conclusively disprove his assertions about the likely implications of current campaign finance law? No, of course not. But it certainly doesn't inspire one iota of confidence in them. If a man who makes a living selling Fords tells you that you will most probably die a horrible flaming death in a gas tank explosion if you buy a Chevy, are you going to a) trust that he must know what he's talking about because, hey, he sells cars for a living, or b) decide that he's trying to pull a fast one? If your answer is b), then I only have one thing to say to you: if you do not buy an Ars subscription right this minute, then your hard drive will surely crash. (I have a degree in computer engineering and I write for Ars, so I can assure you that this is so. Trust me.)

Anyway, I can't spell this out any more clearly for you. Hopefully, those who were genuinely confused by the story as it was originally written will now be enlightened, and those who still don't get it for whatever reason... well, if I could I'd link up a clue for you in the Ars Shopping Engine, but in lieu of that here's the subscription page. I hope your data is backed up, chump.